Easement Law Defined
In the realm of property law, an easement refers to a non-possessory right to cross or otherwise use the land. In other words, it is a right enjoyed by one landowner over the land owned by someone else. While these rights may seem rather abstract—and they can be quite complex in certain situations—they really boil down to a basic "right of way." Of course, this "right of way" can be applied in many ways. Given the amount of commercial and residential property in Florida, you will almost certainly encounter easements at some point as either a prospective buyer or a current owner.
There are two primary types of easements that you are likely to come across: appurtenant and in gross. An appurtenant easement is one which exists between two properties, known as the dominant estate (which benefits from the easement) and the servient estate (which is burdened by the easement) . For example, if your neighbor has an easement on your property, it means he has a specific right to enter that property without trespassing. A right of way is a common example. You could also see appurtenant easements for utility services, such as water and electricity, to access a pump station or other infrastructure. These easements extend with the property and will remain even after a sale or change of ownership.
In gross easements are much rarer. They do not benefit a particular parcel of land, but instead are typically granted to an individual or commercial entity. The most classic example here would be an easement for a utility company to access power lines running through an area.
Even when the general purpose for the easement is clear, the terms of the easement are often subject to specific conditions. Some typical considerations include:
Because easements can be subject to a wide range of conditions, it is always best to have a detailed understanding of your rights and obligations.
Different Types of Florida Easements
Easements are more than just a rough way to get onto someone else’s property. They can be a complex buffer between you and your neighbor or a ways for your neighbor to access utilities. So, how do these things work in Florida? Here is a rundown of the common types you’ll see.
Way Easements
The crux of traditional way easements is to give the holder of the right the ability to cross real property that is not their own. In studiously reciting the language of the statute, a way is defined as, "a right of passage over another person’s ground." In practice, these are almost always owed to the holder of the dominant estate. This concept means that there is a dominant estate and a servient estate. The dominant estate is the property that benefits from the right to cross the servient estate, which is any property on which the right exists. The right can exist over any size parcel of real estate.
A classic example of a way easement is a right-of-way that exists when a plot of land is landlocked by all other property on all sides. Because the owner of this property is cut off from the rest of the world, this right-of-way gives access to the road. This principle can be found in the Florida statutes as well, under Florida Statute 704.01 (2). The right-of-way can be given, but also can be taken away if an owner of the land then builds to the boundary of his/her property creating a way of necessity that went away.
The almost endless possibilities of way easements can create unforeseen danger to an unsuspecting landowner as well. If you are a landowner with access to a public road, for example, and sell that property, the deed must be written in such a way that any right-of-way for the old property owner is revoked. Otherwise, the owner of the underlying estate may have the right to create an access road across your land, effectively creating a road where one previously did not exist.
Utility Easements
The right to install utility lines or drainage is a sufficient benefit to the dominant estate holder to create a utility easement. Just as in a way easement, in order to retain the right over the servient estate, the holder must maintain ownership of the underlying estate. If a utility easement holder changes the path of the line, for example, it relinquishes its right to the old path. However, should it remove the line entirely, the holder can reverse the abandonment and re-establish the old line. Additionally, a utility easement holder must construct its utility line in a way that avoids any unnecessary damage to the servient estate holder’s property. If the utility company does cause damage, the owner has the right to seek compensation for damages resulting from trespass. And lastly, if a utility company no longer needs the right to use the easement, it must be given back to the owner of the underlying servient estate.
In the case of a drainage ditch, for example, the owner has a right to access the ditch and to repair it from time to time if necessary. In return, the owner agrees that the ditch shall be considered kept in good repair, and that its use will benefit the servient estate.
Conservation Easements
The Florida Conservation Easement Act, Florida Statute 259.105, allows the sale of conservation easements to private organizations. These easements can exist in perpetuity, or for a number of years. This type of easement means that the property cannot be developed or used in any way that creates harm to the environment, fish or wildlife of Florida. However, in order to establish an easement, the owner of the servient estate must proceed through a complete waiver process to relief the state of any claims for monetary damages that may occur due to the imposition of the easement.
How to Create a Florida Easement
Creating an easement in Florida must be a deliberate act between the parties. The law of easements in Florida follows the principle that "an easement is an interest which does not give the owner any right to the occupation and beneficial use of the soil but is only a right of way or other privilege which entitles the owner to use the land in a manner not inconsistent with the estate of the owner." Forman v. Sun Ins. Office, Ltd., 75 Fla. 419, 427 (Fla. 1915). However, because the power to create an easement does not arise until the land has been designated for some use in reference to which a right of way is to be laid out, the creation of an easement must be a deliberate act. Evans v. City of Fort Lauderdale, 117 So.2d 432, 434-35 (Fla. 2d DCA 1960). Under Florida law, an express easement is created in a single written instrument. To the extent a claim for easement ownership is based upon a prescriptive easement, its acquisition may be proven by parol independent of a writing. Provident Trust Co. v. Sanders, 69 So.2d 725, 730 (Fla. 1954). A Florida eminent domain attorney is often called upon to create easements in condemnation actions. Condemnation is the exercise of the power of eminent domain, but an easement differs from a fee simple in that it conveys less than all the rights of ownership. Kreager v. City of St. Petersburg, 144 So.2d 756, 758 (Fla. 2d DCA 1962). In accordance with F.S. 73.021(1) "[n]ecessity is the mother of the law of easements." McDonald v. Pasco County, 197 So.3d 1071, 1073 (Fla. 2016). Specifically, the land must be "so situated that the same cannot be used for the purpose contemplated without the necessity of crossing the lands of another; or if such lands can be used without a crossing, then the means or way by which the one seeking to do so shall travel must be exceedingly inconvenient and attended with extraordinary expense." Kreager, 144 So.2d at 758. Alternatively, an easement may also be acquired through prescription or adverse possession. Evans, 117 So.2d at 434-35; Kreager, 144 So.2d at 758.
An Easement Holder’s Rights
The rights and obligations of a dominant estate holder and servient estate holder under an easement in Florida are not always clear. Distinction must be made between an express easement and one established by implication or necessity. Express easements establish predetermined obligations and rights which are agreed upon at the outset of the creation of the easement.
However, there are certain duties imposed on a holder of either the dominant estate or servient estate regarding the maintenance and use of the easement. In virtually all cases, an easement holder has the right to do anything the easement grants, provided its use is not inconsistent with the scope of the easement. A common "scope" question arises from changes in the use of property over time, especially in urban areas. As a general rule, a property owner may do whatever is necessary to fulfill the intended purpose of the easement, as long as the use of the easement is consistent with the intended purpose of the easement.
In Murphy v. Zorn, 75 So. 2d 303 (Fla. 1954) the Florida Supreme Court held that a private canal easement allowed the owner to make structural changes in order to maintain the use of the easement. However, since the parties owning the property held equal interest in the easement, the Court required that the parties equally share the expense of undertaking the maintenance.
Where parties holding a dominant and servient estate to an easement do not provide for the maintenance of the easement, the owner of the servient estate has an obligation to maintain it. However, Florida courts have held that the servient owner, as the owner of the "burdened" part, has a more limited right to change or improve the easement so long as it does not materially interfere with the use by the dominant owner and the expenses associated with the improvements are apportioned between the parties. See City of Palm Bay v. Schwartz, 778 So.2d 388 (Fla. 5th DCA 2001).
A particular area of easement law which can be problematic involves easements created by adverse possession — when a trespasser begins occupying land contrary to the owner’s interest. Florida courts generally agree that if the trespasser has used the property for the statutory 7-year prescription period, the owner loses its interest in the property. F.S. §95.11 (4)(b). However, since easements commonly involve use of real property owned by another, even when an easement has been used for the statutory period, the owner against whom an easement is established by adverse possession will not lose their property interest in the area of the easement — they will only lose the right to continue to use the property in a manner that is inconsistent with the easement.
Florida courts have generally held that when an easement is created by adverse possession, it must be evaluated in light of the language of the easement. In the case of Sullivan v. Kelleher, 254 So. 2d 496 (Fla. 3rd DCA 1971) a predecessor in interest used a portion of a neighbor’s property to gain access to the beach in order to maintain a seawall. The property owner never expressly consented to the use but weekly sawsaws were seen being used to maintain the seawall by the easement-holders.
After the property owner died, his heirs sued to prevent the use. The trial court held there was an implied easement for the defendant’s maintenance, citing the prescriptive period of 20 years provided for by statute. The Court of Appeal reversed the decision, stating that "clear manifestations of intention by all parties are required to indicate an intention that the easement of a prescriptive easement continues indefinitely. See also e.g. Hobbs v. Schmidt, 294 So.2d 69 (Fla. 2d DCA 1974).
Other issues surrounding easement use involve changes in the nature of the easement over time. Florida courts have held that any changes to the size or scope of the easement must be conveyed in writing and the easement cannot be expanded by prescription. See Dubuc, Inc. v. Lilienfeld, 18 So. 3d 4 (2009); Williams v. Maltese, 503 So. 2d 975 (Fla. 5th DCA 1987). Likewise, Florida courts have held that claimants for an easement by necessity must show that the easement existed at the time only the owner of the dominant estate was able to access the property. See Boulanger v. Baylis, 427 So.2d 343 (Fla. 1983) (a key to determining a prescriptive easement is whether the use was made of private or public land).
Disputes Over an Easement
Disputes involving easements in Florida can be as complex and varied as the properties they concern. Easement disputes commonly arise from land development, improper construction, or alteration of the property, or as a result of a change in the use of the land that does not conform to the terms of the easement.
Common easement disputes include contended use of the access, use of access by third party corporations or individuals, non-compliance with easement access laws, failure to maintain the easement; and misuse of the easement.
Disputes will often be subject to equity and trust remedies that courts in Florida are authorized to grant in easement cases. Equitable remedies include a mandatory or prohibitory injunction, money damages, and specific performance . The remedies that most often interest property owners in Florida are monetary awards provided through money damages to compensate for injuries from use of the easement, and specific performance that requires the land owner to fulfill obligations associated with the easement.
Where property owners cannot negotiate an agreement that resolves the use or scope of the easement, litigation becomes necessary. Prior legal opinions on easement disputes in Florida indicate the importance of appointing a surveyor to determine the position and/or boundaries of the subject easement. During litigation, a judge may place the burden for the cost of determining the boundaries of the easement on the parties, order property owners to use an agreed-upon surveyor, or appoint a surveyor.
Ending a Florida Easement
An easement can be terminated by express release. In such case, the parties must execute a formal document evidencing the termination. In most instances such a document would be recorded in the public records. Thereafter, no third-party would have a reason to "think" that the easement remained in existence. This is bright line law and often makes perfect sense.
However, situations often arise where the parties to an easement are not in sync for some reason or another. For example, this may occur because of a divorce in which there was an "unintentional" oversight. In those situations, an "inadvertent" termination may occur. In such an event, the law in Florida requires "clear and convincing evidence" that the easement has in fact terminated.
Abandonment may also be a means by which an easement may be terminated. In Florida, even an "obviously infrequent" use of an easement is often sufficient to prove that an easement has not been abandoned. Instead, some use must be shown to justify the perpetuity of the easement, albeit sporadic or meager use is often enough.
Florida law further allows for a neighbor to terminate an easement when such an easement is lost "to an active and continuous invasion of the servient estate." However, it should also be noted that such an invasion must be obvious and apparent, and not just "speculative uncertainty." Thus, to obtain a judicial determination of an easement involving a whole host of factors and unpleasantries, including litigation, an invasion will not usually be shown. Such a smart lawyer simply brings suit for the "abandonment" of the easement and leaves all of the other issues out of the courtroom so that the valuable, and often difficult to obtain, easement will not be lost.
Finally, an easement can also be terminated by expiration. In Florida, an express easement may terminate upon the occurrence of a specified condition set forth in the easement itself. Usually, this condition involves an event unlikely ever to occur. In this instance, the date of the expiration of the easement will be determined based on the language used in the easement. Thus, if an easement terminates at the end of a period of years, the expiration date would be determined based on the date of the execution of the easement and the language used therein.
A court may also terminate an easement in Florida on the basis of an express easement that has expired. This may occur because the easement was executed based on a false assumption of fact or mutual mistake of fact, and it may be determined that the intention of the parties was to create no easement at all or an easement for a limited duration. Further, an easement may have been intended to be an easement that would expire when a condition was satisfied, but when the condition failed to occur, the easement is terminated.
How an Easement Affects Property Value
One way an easement can actually enhance the value of a property is by making it more functional. For example, if an easement to an adjoining landowner creates a shortcut for passing from one part of the property to another, it can make it easier to use that land for its intended purposes. This is often the case for lots that may be difficult to navigate if separated by a waterway or a road without access points. On the flip side, some easements may render a portion of a property unusable. If that portion was going to, or was already enhancing the value of that property, its removal, abandonment or termination could have a negative effect on its value. For example, if property is granted to an individual or corporation for a pipeline that would allow it to install a box to service that easement, what will that do to the value of the property? Or, if an easement is acquired to provide a shortcut for passing from one part of a property to another, and that short cut then becomes the law, then taking the shortcut with great frequency may decrease the value of the property. Lastly, if an easement gives someone else the right to access the property, then the owner of the property will likely have to do the necessary maintenance to keep the easement from negatively impacting the value of the property.
When to Get Legal Help
Obtaining legal advice on easement matters in Florida requires first understanding the nature of the easement and the owner of the land which it burdened. If the easement was created by a written instrument, such as a deed, then a real estate attorney may be able to assist you with understanding and enforcing the easement. If the easement was created by an implied easement (also known as a prescriptive easement), a real estate attorney may advise you as to whether the implied easement was created. Consulting with a real estate attorney also helps you identify the landowner against which the easement runs. Unfortunately, although easements are frequently recorded in the Official Records of the county where the burdened land is located, such recordation does not always provide adequate description of the easement . Removing and recording a defective easement may be required prior to instituting a lawsuit over an easement. The Florida Statutes include specific provisions for claims or petitions involving easements found in Sections 73.091, 73.141, and 81.001-81.29 of the Florida Statutes. These provisions governs how the State can take certain easement interests, and the petition required to have the subject matter taken.
Other resources on easements can be found in Henkel, The Law of Easements and Licenses in the State of Florida, 2 Fla. Jur. 3d Real Prop. at § 25. As with other undertakings, reading the literature on the area involved often clarifies matters.